Sri Sripathi S/O M H Chikkanna vs Bangalore Mahanagara Palike
2022 Latest Caselaw 6268 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 7TH DAY OF APRIL, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

          REGULAR FIRST APPEAL NO.193 OF 2008

BETWEEN:

1.     SRI SRIPATHI
       S/O M.H. CHIKKANNA
       AGED ABOUT 42 YEARS
       PRESENTLY RESIDING AT
       NO.209, EWS, 1ST STAGE
       KHB COLONY
       BASAVESHWARANAGAR
       BENGALURU - 560 079

2.     SRI VIJAYA KUMAR
       S/O CHIKKANNA
       AGED ABOUT 44 YEARS
       NO.2526 MEENAKSHINAGAR
       KAMAKSHIPALYA
       BENGALURU - 560 079

3.     SRI B.L. SHANKAR
       S/O B. LINGAPPA
       AGED ABOUT 37 YEARS
       NO.144 1ST STAGE
       1ST MAIN 3RD CROSS
       KHB COLONY
       BASAVESHWARANAGAR
       BENGALURU - 560 079

4.     SRI R. SHIVAKUMAR
       S/O RAMAKRISHNAPPA
                          2



     AGED ABOUT 44 YEARS
     NO.130 EWS 1ST STAGE
     KHB COLONY
     BASAVESHWARANAGAR
     BENGALURU - 560 079

5.   SRI K.B. RAMESH
     S/O BEERAPPA
     AGED ABOUT 47 YEARS
     97, 1ST STAGE 1ST MAIN ROAD
     KHB COLONY
     BASAVESHWARANAGAR
     BENGALURU - 560 079

6.   SRI JAIKUMAR GOWDA
     AGED ABOUT 38 YEARS
     VINAYAKA LAYOUT
     MAGADI MAIN ROAD
     BENGALURU - 560 079

7.   SRI ANAND B.M.
     S/O MALLAPPA
     AGED ABOUT 24 YEARS
     NO.202 EWS 1ST STAGE
     KHB COLONY
     BASAVESHWARANAGAR
     BENGALURU - 560 079

8.   SRI MOHAN KRISHNA
     S/O LAKSHMAPPA
     AGED ABOUT 43 YEARS
     2, 1ST MAIN ROAD
     1ST STAGE KHB COLONY
     BASAVESHWARANAGAR
     BENGALURU - 560 079

                                   ...APPELLANTS

(BY SRI.GOUTHAM A.R, ADVOCATE)
                                 3



AND

1.    BANGALORE MAHANAGARA PALIKE
      BCC OFFICES BENGALURU - 560 002
      REPRESENTED BY ITS
      COMMISSIONER

2.    THE EXECUTIVE ENGINEER
      BENGALURU MAHANAGARA PALIKE
      WEST DIVISION RTO COMPLEX
      3RD BLOCK RAJAJINAGAR
      BENGALURU - 560 010

3.    THE OFFICER INCHARGE
      HORTICULTURAL DEPARTMENT
      BENGALURU MAHANAGARA PALIKE
      8TH CROSS MALLESWARAM
      BENGALURU - 560 003.

      RESPONDENT No.4 DELETED
      AS PER THE ORDER OF HON'BLE
      COURT ORDER DTD. 18.2.2008.

                                              .....RESPONDENTS

(BY SRI S.N.PRASHANTH CHANDRA, ADVOCATE
FOR R1-R3, R-4-DELETED)

     THIS REGULAR FIRST APPEAL IS FILED UNDER
ORDER XLI RULE 1 R/W SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 09.01.2008 PASSED IN
O.S.NO.6720/2006 ON THE FILE OF THE IX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH.NO.10) DISMSISING THE SUIT FOR PERMANENT
INJUNCTION.
       THIS REGULAR FIRST APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                               4




                           JUDGMENT

This captioned Regular First Appeal is filed by the

unsuccessful plaintiffs questioning the judgment and

decree passed in O.S.No.6720/2006, wherein the

learned Judge has dismissed the suit filed by the

plaintiffs herein.

2. For the sake of convenience, the parties are

referred to as per their ranks before the Trial Court.

3. The brief facts leading to the case are as

follows;

The plaintiffs claimed to be the permanent

residents of KHB Colony, Basaveshwaranagar,

Bengaluru. It is contended that the plaintiffs are

residing in the above said area for several years and

claimed to be the public spirited people who are

interested in safeguarding the environment and

civic amenities in the area for the benefit of the

residents of Basaveshwaranagar Area. The plaintiffs

claimed that the suit schedule property is used as a

playground. It is further specifically contended that

the children are making use of the said open space for

playing games like football and cricket etc. The

plaintiffs have further contended that the playground

is used through Gates and the said open space is

easily accessible to all the children to utilize the said

open space for playing.

4. The grievance of the plaintiffs is that on

22.07.2006, the construction workers, who were

engaged by the defendants, were making

arrangements to remove the gates existing on the

western side and made an attempt to close entry to

the playground. This compelled the plaintiffs to

enquire with the defendants and it is in this

background, the plaintiffs learnt that the defendants

are intending to convert the entire playground into a

park thereby denying the children of the said vicinity

to use the said open space as a playground. The

plaintiffs have specifically alleged that children of the

said vicinity do not have alternate playground. To

strengthen their claim, the plaintiffs have also pleaded

at para No.6 of the plaint that in the 18th ward of

Basaveshwara Nagar, which also includes KHB colony,

there are as many as seven parks within the radius of

1.5 kilometers. Since there are no other playgrounds

in the said vicinity and if, defendants are permitted to

convert the playground into a park, that would

virtually deny the children of that vicinity from

indulging in sports activities and therefore, would

cause irreparable loss, hardship and substantial injury

to the residents of KHB colony. On these set of

pleadings, the present suit for bare injunction came to

be filed.

5. On receipt of summons, the defendants -

Corporation contested the proceedings by filing

written statement. The defendants stoutly denied the

entire averments made in the plaint. The defendants

specifically contended that the present suit schedule

property is located in the combined layout of

Karnataka Housing Board and Agrahara Dasarahalli.

The defendants specifically contended that the suit

schedule property is the land reserved for park under

the scheme of Karnataka Housing Board. The schedule

property was transferred by the Housing Board in

favour of the defendants to maintain it as a park. It is

also specifically pleaded that the entire open space

was transferred in two installments. The western

portion measuring east to west 133+122/2 feet and

north to south 254+280/2 feet totally measuring

31,372 square feet was transferred to the defendants

on 12.04.2005 for development of park by the

defendants. The remaining eastern portion which

comprises of old dilapidated buildings i.e., godown,

camp office and a watchman shed totally measuring

23,004 square feets was transferred to the defendants

on 13.05.2005. The defendants also contended that

in view of relinquishment by the Housing Board, the

property was duly mutated in the name of the

defendants corporation on 10.10.2005. Since the open

space was designated and reserved for park, the

defendants intended to develop the open space to

utilize as a park and accordingly, demolished the old

dilapidated brick masonry compound wall and

commenced work of fixing and erection of ornamental

M.S Grill Iron gate fencing with rods and the same

was completed by July 2006 at the two entrance gates

at north and south.

6. The defendants also specifically contended

that the present suit is not maintainable as there is no

compliance with the provisions of Section 482 of KMC

Act. The defendants also contended that the plaintiffs

have not approached the Court with clean hands and

the present suit is presented by suppressing material

facts. On these set of defence, the defendants sought

for dismissal of the suit.

7. Based on the rival contentions, the Trial

Court formulated the following issues.

1. Whether the plaintiffs prove that defendants cannot convert the schedule property used as a playground into a park?

2. Whether the plaintiffs are entitled to permanent injunction sought for?

3. To what order or decree?

8. The plaintiffs to substantiate their claim,

examined 3rd plaintiff as P.W.1 and adduced

documentary evidence vide Exs.P.1 to 17. The

defendants - Corporation examined its official as

D.W.1 and adduced documentary evidence vide

Exs.D.1 to 10.

9. The learned Judge having assessed the ocular

and documentary evidence of the parties answered

issue Nos.1 and 2 in the negative. The learned Judge

having referred to rebuttal evidence lead in by

defendants - Corporation has come to conclusion that

the plaintiffs have failed to substantiate their claim

that the suit schedule property was reserved as a

playground. On the contrary, the Court by examining

the rebuttal evidence found that the suit schedule

property is already notified as a park area and

therefore, it was well within the authority of the

defendants - Corporation to develop the suit schedule

property to be utilized as park. On these set of

reasonings, the learned Judge has proceeded to

dismiss the suit.

10. Heard learned counsel appearing for the

plaintiffs and learned appearing for the defendants -

Corporation. Perused the pleadings, ocular and

documentary evidence.

11. The point that would arise for consideration

by this Court is;

Whether the judgment and decree of the Trial Court in dismissing the suit suffers from infirmities and therefore, would warrant at the hands of the Court?

12. Findings on point No.1 :-

The present suit is filed for bare injunction and

the plaintiffs claim that they are the residents of

Basaveshwara Nagar. On bare perusal of the

averments made in the plaint, this Court would find

that none of the plaintiffs are owners of the sites

formed by the Karnataka Housing Board. Except

producing some photographs, a rough sketch and a

copy of the legal notice dated 01.08.2006, the

plaintiffs have not placed on record any clinching

evidence to substantiate their claim that this open

space is notified as a playground and the same has to

be utilized as a playground. On the contrary, the

defendants - Corporation has placed on record the

proceedings of the Housing Board vide Exs.D.6 and 7.

The defendants - Corporation has also placed on

record the approved layout plan vide Ex.D.8. The

proceedings of the Housing Board vide Exs.D.6 and 7

would clinch the controversy between the parties.

Exs.D.6 and 7 are to be examined by referring to the

approved layout plan vide Ex.D.8. While seeking

approval, the Housing Board has left open space while

submitting a proposal for approval of the layout and

while leaving open space, the Housing Board has

clearly notified that this open space has to be utilized

for park. This layout is approved and since this layout

formed by the Housing Board and layout out is

approved at the instance of the Housing Board, the

plaintiffs cannot assert and insist that this open space

has to be utilized as a playground and not as a park.

The Housing Board having developed the land and

having formed the layout has subsequently, handed

over this open space to BBMP. This transfer is made

by specifically notifying that the open space has to be

utilized as a park. The proceedings vide Exs.D.6

and 7 of the Housing Board would clinch the issue. In

both the proceedings as per Exs.D.6 and 7, the

Housing Board has clearly stated that this open space

has to be developed and utilized for the purpose of

park. If this clinching rebuttal evidence is taken into

consideration, this court is of the view that the

plaintiffs bald assertions in the plaint in the absence of

clinching evidence cannot be entertained. The

plaintiffs, who are the residents and have no legal

right over the suit schedule property, cannot maintain

a suit for bare injunction. This Court would also find

that the plaintiffs, while instituting the suit, have not

chosen to implead the Housing Board, which was

necessary party having regard to the controversy

between the parties.

13. Be that as it may, the clinching rebuttal

evidence clearly indicates that the open space, which

was reserved while forming a layout, was clearly

notified that the same has to be utilized as a park and

not as a playground. Therefore, it is well within the

authority of the defendants - Corporation consequent

to transfer by the Housing Board to utilise it as a park.

Since plaintiff has no legal right, I am not inclined to

grant discretionary relief of injunction. In that view of

the matter, the point formulated by this Court has to

be answered in the negative.

Accordingly, the appeal is devoid of merits and

stands dismissed.

Sd/-

JUDGE

NBM